BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

_______________________________________

 )

Michael Gurevich and Elena Gurevich, )

Petitioners )

 ) DOT OST-2012-0040

v. )

 )

Compagnia Aereas Italiana, S.p.A. )

______________________________________)

PETITIONERS’ MOTION TO FILE A REPLY

PURSUANT TO 14 C.F.R. §302.6(c)AND REPLY TO THE

ANSWER OF ALITALIA-COMPAGNIA AEREA ITALIANA, S.P.A.

Communications with respect to this document should be addressed to Counsel for 

Petitioners:

Hank Bates

CARNEY WILLIAMS BATES 

 PULLIAM & BOWMAN, PLLC

11311 Arcade Drive, Suite 200

Little Rock, AR 72212

(501) 312-8500 – Telephone

(501) 312-8505 – Facsimile

hbates@carneywilliams.com
i

INDEX

I. Introduction..........................................................................................................................2

II. Alitalia Admits the Fundamental Factual and Legal Issues Relevant to This 

Proceeding and the Related Civil Action.............................................................................3

A. Alitalia Admits It Informs Passengers That Its General Conditions of 

Carriage Apply to Travel To and From The U.S. ...................................................3

B. Alitalia Admits That It Has Not Provided Actual Notice As Required by 

14 C.F.R. §221.100, Et. Seq.....................................................................................3

C. 14 C.F.R. §221.100, Et. Seq. Is Not a Mere “Technicality”—As a Matter 

of Law Unnoticed Tariff Provisions Are Not Relevant to the Passenger 

Contract....................................................................................................................4

D. Alitalia Admits That It Must Comply With Applicable Laws and 

Regulations Such As EU 261, Independent of Any Tariff or Contract 

Language..................................................................................................................6

E. Alitalia Admits That It Does Not “Voluntarily” Comply With EU 261..................6

III. Alitalia Misrepresents the Requirements and Applicability of the EU 261 

Provisions Plaintiffs Seek to Enforce ..................................................................................7

IV. Alitalia Cannot Retroactively Alter Past Passenger Contracts and Its “Stopgap” 

Amendment to the GCC Only Adds More Confusion and Deception.................................8

V. Alitalia’s “Stopgap” Notation Reemphasizes that Under Rule 55(B)(3)(B) of the 

Tariff, the Ticket and GCC Apply to Travel to and from the U.S. ....................................9

VI. Alitalia Misses the Point Regarding the Lack of Approval of Tariff Rule 55...................10

VII. Conclusion .........................................................................................................................10
1

BEFORE THE

DEPARTMENT OF TRANSPORTATION

WASHINGTON, D.C.

______________________________________

 )

Michael Gurevich and Elena Gurevich, )

 ) DOT OST-2012-0040

v. )

 )

Compagnia Aereas Italiana, S.p.A. )

______________________________________)

PETITIONERS’ MOTION TO FILE A REPLY

PURSUANT TO 14 C.F.R. §302.6(c)AND REPLY TO THE

ANSWER OF ALITALIA-COMPAGNIA AEREA ITALIANA, S.P.A.

Pursuant to 14 C.F.R. §302.6(c) Petitioners seek leave to file a Reply to the Answer of 

Alitalia-Compagnia Aerea Italiana, S.p.A. (“Alitalia”). Although replies are normally not 

authorized, leave should be granted in this instance for the following reasons. One, Alitalia’s 

Answer raises numerous factual and legal issues that require response and clarification as to the 

underlying law, the controlling regulations, the related civil action, the applicability of EU 261 

and the construction of Alitalia’s tariff provisions. Two, although Alitalia admits to the alleged 

deception and to failing to comply with the relevant regulations, Alitalia attempts to excuse its 

violations as “technicalities.” This “technicality” argument requires a reply. Three, Alitalia has 

revised its General Conditions of Carriage since the filing of the Complaint. Petitioners are 

entitled to an opportunity to respond to this change in the factual circumstances.

For all the foregoing reasons, Petitioners respectfully request leave to file the Reply to the 

Answer of Alitalia-Compagnia Aerea Italiana, S.p.A set forth below.
2

PETITIONERS’ REPLY TO THE ANSWER OF

ALITALIA-COMPAGNIA AEREA ITALIANA, S.P.A.

I. INTRODUCTION.

Alitalia admits that it informs its passengers that its General Conditions of Carriage 

(“GCC”) apply to travel to and from the U.S. and that those GCC incorporate rights under EU 

261. It also admits that it provides its passengers no notice whatsoever of its tariff on file with 

the U.S. Department of Transportation (“DOT”). Alitalia even admits that it must comply with 

all applicable laws, regardless what its tariff or GCC provide, but that it has made an affirmative 

policy choice not to voluntarily comply with the compensation provisions of EU 261. That 

policy choice is confirmed by its legal positions in U.S. and European courts, where it has

challenged EU 261 and attempted to avoid compliance.

Alitalia’s admissions simplify this dispute. The primary impetus to Petitioners’ filing of 

the Complaint was Judge Sharon Johnson Coleman’s directive in the related civil action that 

Petitioners seek a determination by DOT as to whether Alitalia’s tariff Rule 55 applied to 

Petitioners’ travel despite Alitalia’s failure to comply with DOT’s regulations requiring actual 

notice (among other reasons). At the very least, Petitioners request that the DOT (a) confirm that 

absent actual notice as required by 14 C.F.R. §221.100, et seq., tariff provisions are not part of a 

passenger’s transportation contract; and (b) confirm Alitalia’s admission, that regardless whether 

the tariff provisions are applicable or how they are construed, Alitalia must comply with EU 261 

and other applicable international and federal laws independently.

In what it calls a “stopgap” measure, Alitalia attempts to retroactively alter passenger 

contracts entered into over the last three years by adding new language to its GCC shortly before 

it filed its Answer. Alitalia cannot retroactively alter the terms of transportation contracts for 

completed flights. Regardless, moving forward, Alitalia’s “stopgap” measure highlights how 
3

Alitalia is seeking to benefit from the confusion by picking and choosing when to adhere to its

passenger contract. Alitalia’s “stopgap” language also highlights that the only reasonable 

interpretation of its tariff Rule 55 is that the passenger ticket (and the GCC incorporated by 

reference) sets forth the transportation contract.

II. ALITALIA ADMITS THE FUNDAMENTAL FACTUAL AND LEGAL ISSUES 

RELEVANT TO THIS PROCEEDING AND THE RELATED CIVIL ACTION.

A. ALITALIA ADMITS IT INFORMS PASSENGERS THAT ITS GENERAL 

CONDITIONS OF CARRIAGE APPLY TO TRAVEL TO AND FROM 

THE U.S.

In the Complaint (pp. 4-6), Petitioners demonstrated that Alitalia consistently and 

unequivocally informs its passengers that its General Conditions of Carriage (“GCC”) apply to 

flights to and from the U.S. Alitalia does so in the GCC itself (Ex. 1), at the point of purchase 

(Ex. 2), at its “Passenger Rights” webpage (Ex. 3), at its “Customer Commitment” webpage (Ex. 

4), and in its DOT-mandated Customer Service Plan (Ex. 4). Petitioners also demonstrated that 

the GCC included a promise to provide compensation consistent with the requirements of EU 

261. Compl. at 7 (GCC at Art. X).

Alitalia simply admits these allegations.

B. ALITALIA ADMITS THAT IT HAS NOT PROVIDED ACTUAL NOTICE 

AS REQUIRED BY 14 C.F.R. §221.100, ET. SEQ.

Alitalia admits that it does not provide any notice of any of its tariff provisions to 

any of its passengers as required by 14 C.F.R. §221.100, et seq. Alitalia Answer at 10 (“Alitalia 

acknowledges that its General Conditions of Carriage and its website did not contain any 

reference to its filed tariff.1”)

 

1 Alitalia also does not refute Petitioners’ allegation that Alitalia does not make the tariff available for inspection as 

required by 14 C.F.R. §221.101 or provide the notice required at ticketing locations required by 14 C.F.R. §221.103.
4

C. 14 C.F.R. §221.100, ET. SEQ. IS NOT A MERE “TECHNICALITY”—AS A 

MATTER OF LAW UNNOTICED TARIFF PROVISIONS ARE NOT 

RELEVANT TO THE PASSENGER CONTRACT.

In an effort to avoid compliance with the notice requirements in 14 C.F.R. §221.100, 

Alitalia asks the DOT to dismiss the notice requirements it adopted as a meaningless 

“technicality.” Alitalia is wrong.

14 C.F.R. §221.100 explicitly states that “Carriers must make tariff information available 

to the general public.” (Emphasis added). In the Notice of Proposed Rulemaking for the notice 

requirements, DOT explained that passengers’ first line of inquiry about their international travel 

rights is typically to question the airline itself and consult the travel documentation publicly 

provided, which typically contains contractual provisions or refers all passengers to the airline’s 

contract of carriage. 62 FR 10758, 10761, Docket OST 97-2050 (“[T]o the extent that 

passengers might have questions about the application or interpretation of certain provisions, it is 

likely that they would consult the carrier directly, rather than its tariff.”). Indeed, the DOT 

revisions recognize that the ticket, contract of carriage and related documents are the primary 

source to provide sufficient notice to passengers and that a tariff should only provide more 

detailed rights where the tariff is expressly incorporated by reference into the contract of 

carriage. Id. (“[T]o the extent that tariffs might set forth certain material greater in detail than 

travel documents, the Department already has an alternative framework in place to permit its 

incorporation into a contract of carriage with adequate notice to passengers.” (Emphasis 

added)).

Consistent with modern industry practice and consumer expectations, the DOT has 

endorsed a notice regime that is not premised on the content of undisclosed tariffs filed with the 

Department. Id. (“We are not aware of particular conditions or issues in any market where 
5

continuation of rules tariffs would be superior to a notice regime.”) Furthermore, the DOT has 

made clear that it does not wish to interfere with the contract formation that occurs through the 

ticket, contract of carriage and other direct communication between carrier and passenger. Id.

(“The graduated system of written notice and right of immediate inspection for general terms, 

coupled with direct notice and/or a right to an immediate explanation of certain more important 

terms, constitutes a deliberate balance between the ease of contract formation and the importance 

of informed assent.”).

In the preamble to the final rulemaking, DOT again addressed the issue of constructive 

notice, expressly rejecting a proposal by two air carriers to allow reliance on the tariff filing 

mechanism for constructive notice of contract terms. “Air Pacific and Qantas have failed to 

provide any reasons as to why passenger rules tariffs should be treated differently than cargo 

rules tariffs or why relying on the tariff filing mechanism for passenger notice is better than 

relying on normal contract law.” 64 FR 40654, 40656-57.

Alitalia argues that a finding of noncompliance with the notice regulations would amount 

to “retroactive” invalidation of the tariff. As a preliminary matter, the DOT never validated or 

approved the relevant tariff provisions (Rule 55). More fundamentally, the notice requirement 

does not implicate the validity of the tariff provision per se. Instead, notice goes to the narrower 

question of whether the tariff provision applies to a particular passenger’s transportation 

contract. With the promulgation of 14 C.F.R. §221.100, et seq., constructive notice was 

supplanted with a clear federal mandate requiring actual notice by either incorporation into the 

ticket and GCC or by required signage. In the absence of actual notice tariff provisions simply 

are not part of the passenger contract. In actuality, it is Alitalia that is attempting to retroactively 
6

incorporate terms that it chose not to include in the contract and chose not to reveal to the 

passenger at the time of contract formation.

D. ALITALIA ADMITS THAT IT MUST COMPLY WITH APPLICABLE 

LAWS AND REGULATIONS SUCH AS EU 261, INDEPENDENT OF ANY 

TARIFF OR CONTRACT LANGUAGE.

Alitalia admits it “must . . . comply with laws and regulations applicable to air 

transportation to and from the United States, regardless of whether or not its conditions of 

carriage apply to such transportation.” Answer at 12. Alitalia also admits that its tariff cannot 

excuse it from complying with applicable law. Id. at 13. These are critical admissions because 

they highlight that Alitalia must comply with EU 261 regardless whether it promises to do so in 

its passenger contract and regardless the content of its tariff.

E. ALITALIA ADMITS THAT IT DOES NOT “VOLUNTARILY” COMPLY 

WITH EU 261.

Alitalia admits that it does not “voluntarily provid[e] compensation to passengers under 

EU 261. Answer at p. 14. This admission is consistent with Alitalia’s opposition in the related 

civil action and its unsuccessful attempts to challenge EU 261 before European courts, including

the European Court of Justice. See Wallentin-Hermann v. Alitalia, European Court of Justice, 

Case No C-549/07, Judgment of December 22, 2008 (Attached as Exhibit 15). This policy 

position is the impetus for the related civil action and the reason the proposed class is substantial 

in size. Alitalia’s choice to challenge EU 261 rather than voluntarily comply with it also 

explains why Alitalia fears it may be liable for “millions of dollars in damages for alleged failure 

to voluntarily provide compensation.” Answer at 1.
7

III. ALITALIA MISREPRESENTS THE REQUIREMENTS AND APPLICABILITY 

OF THE EU 261 PROVISIONS PLAINTIFFS SEEK TO ENFORCE.

Alitalia admits it is required to comply with applicable law and that it does not comply 

with EU 261 or the provisions of its GCC that incorporate EU 261. However, Alitalia 

misrepresents the nature of Petitioners’ claims in the related civil action, the applicability of EU 

261 to Alitalia flights originating in both Europe and the U.S., and the enforceability of EU 261 

by U.S. courts.

Alitalia misrepresents Petitioners’ claims in the related civil action. Answer at 1-2. The 

civil action is a straightforward attempt to enforce the provisions of EU 261 that Alitalia admits 

it has chosen not to comply with voluntarily. On behalf of a class of similarly-situated U.S. 

residents, Petitioners seek to enforce the provisions of EU 261 related to cancellations and long 

delays. Because Alitalia explicitly incorporated these rights into its ticket and GCC, Petitioners 

chose to bring the civil action initially as a breach of contract claim.

Contrary to Alitalia’s arguments (Answer at 2, 11), EU 261 is unquestionably applicable 

to Alitalia’s flights to and from the U.S. For carriers such as Alitalia that operate pursuant to a 

license granted by an EU-member country, EU 261 applies to flights both to and from airports in 

EU-member countries.2 Ex.16 at Art. 3. In two recent decisions on EU 261, courts have 

determined that EU 261 applies to flights operated by European carriers that originate in the U.S. 

and that U.S. residents can enforce rights under EU 261 in U.S. federal courts. See

Giannopoulos et al v. Iberia Aeras de Espana, S.A., , 2011 U.S. Dist. LEXIS 82304 (N.D. Ill. 

July 27, 2011) (rejecting defendant European airline’s argument that EU 261 does not apply to 

flights originating in the US and finding that enforcement of U.S. passengers’ rights in the U.S. 

did not violate international comity) (attached as Ex. 17); Polinovsky et al v. Deutche Lufthansa,

 

2

For U.S. carriers and other carriers licensed by a non-EU country, EU 261 only applies to flights that depart from 

an airport in an EU country. Ex. 16 at Art. 3.
8

2012 U.S. Dist. LEXIS 44363 (N.D. Ill., March 30, 2012) (Judge Sharon Johnson Coleman 

rejected multiple challenges to the enforcement of EU 261 provisions against a European carrier 

by U.S. residents in U.S. federal court) (attached as Ex. 18).3

IV. ALITALIA CANNOT RETROACTIVELY ALTER PAST PASSENGER 

CONTRACTS AND ITS “STOPGAP” AMENDMENT TO THE GCC ONLY 

ADDS MORE CONFUSION AND DECEPTION.

Alitalia’s self-described “stopgap” measure only confuses matter further. Shortly before 

filing its Answer, Alitalia added the following notation to the beginning of its GCC:

THE PROVISIONS ON THE PASSENGER’S TICKET AND CONDITIONS OF 

CARRIAGE ARE APPLICABLE UNLESS INCONSISTENT WITH OUR 

TARIFFS OR APPLICABLE LAW, IN WHICH EVENT SUCH TARIFFS OR 

LAW SHALL PREVAIL.

Answer at 10 (Emphasis added). Obviously, this very recent notation has no relevance to 

Petitioners’ travel completed three years ago in April 2009. Alitalia cannot retroactively change 

its passenger contract with Petitioners or with the thousands of other U.S. passengers who flew 

during the Class Period.

Moreover, moving forward, Alitalia’s “stopgap” measure only adds to the confusion and 

deception. On its face, the “stopgap” language informs the passenger that normally the terms in 

the ticket and the GCC “are applicable” to travel to and from the U.S. with some possible 

exceptions where they may be “inconsistent” with specific tariff provisions. Yet, Alitalia is 

taking the position in court and before this agency that pursuant to Rule 55(B)(3)(D), the GCC 

never applies to travel to and from the U.S. Alitalia’s position is not one of intermittent 

inconsistency, but complete nullification.

 

3 Alitalia misconstrues the holding in Polinovsky, et al., v. British Airways, PLC, No. 1:11-cv-00779 (March 30, 

2012). That ruling was limited to the construction of the specific language in the British Airways transportation 

contract, holding that the contract had not incorporated any rights under EU 261 because it neither enumerated those 

rights specifically nor incorporated EU 261 by specific reference. The Court did not address any of British Airways’ 

legal challenges to the enforceability of EU 261 (which mirrored the defenses rejected in Iberia and Deutsch 

Lufthansa). 
9

Alitalia’s self-serving scheme is clear. As it has in the past (see Ex. 5), it wants to pick 

and choose when the GCC applies to travel to and from the U.S. When it suits its self-interest, 

Alitalia will take the position that the GCC is consistent with the tariff. As it candidly admits, 

other than the Article X provisions related to EU 261, Alitalia very much likes its GCC 

provisions and wants to keep them as handy defenses. Answer at 14. However, when 

compliance with the GCC is not in its interest, it wants to play the “inconsistency” card, even if 

the so-called “inconsistency” is that the GCC never applies. In short, Alitalia is seeking to 

continue to play the same game of deception.

V. ALITALIA’S “STOPGAP” NOTATION REEMPHASIZES THAT UNDER RULE 

55(B)(3)(B) OF THE TARIFF, THE TICKET AND GCC APPLY TO TRAVEL TO 

AND FROM THE U.S.

Rule 55(B)(3)(B) clearly states that carriage on Alitalia flights is subject to “Provisions 

set forth in the passenger’s ticket.” Ex. 8. Now, Alitalia has “doubled down” and added a 

notation in all capital letters at the beginning of the GCC stating that the provisions of the ticket 

apply. Alitalia admits, as is industry custom, that the ticket incorporates the entire GCC. 

Therefore, the only reasonable interpretation of Alitalia’s tariff Rule 55 is the one that is 

consistent with industry practice, consistent with what Alitalia has always told its passengers, 

consistent with Alitalia’s latest revision to its GCC, consistent with fair treatment of its 

passengers and consistent with common sense – travel to and from the U.S. is subject to the 

provisions in the ticket and the GCC incorporated therein.

Indeed, as Alitalia points out, other airlines have similar language in their tariffs on file 

with DOT. Yet Petitioners could find no reported, post-deregulation cases where either Alitalia 

or any other airline disavowed the application of the terms of its unilaterally drafted 

transportation contract premised upon the construction of the tariff Alitalia argues here. No 
10

other airline has taken this position in the EU 261 context. Indeed, Alitalia has never taken this 

position before, but has instead used its GCC as a shield. Ex. 5. In short, no other airline has 

taken the position that its noticed contractual provisions are a hoax. However, if DOT blesses 

Alitalia’s actions here, other airlines will take note and recognize that they too, when it serves 

their interests, may be able to disavow their contractual promises to their customers and get away 

with it.

VI. ALITALIA MISSES THE POINT REGARDING THE LACK OF APPROVAL OF 

TARIFF RULE 55.

Alitalia admits that Rule 55 of its tariff has not been approved by the DOT but misses the 

point regarding the consequences of that lack of approval. Petitioners never argued that lack of 

approval invalidates the tariff per se. Instead, Petitioners merely pointed out that, prior to 

deregulation when the constructive notice doctrine was applicable, constructive notice was 

premised on approval. Without governmental approval there was no foundation for constructive 

notice. It was the governmental blessing that elevated the tariff to force of law and provided the 

premise for constructive notice. Compl. at pp.11-13.

VII. CONCLUSION.

For the foregoing reasons, the relief requested in Petitioners’ Complaint should be 

granted in full.











I

(Acts whose publication is obligatory)

REGULATION (EC) No 261/2004 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 11 February 2004

establishing common rules on compensation and assistance to passengers in the event of denied

boarding and of cancellation or long delay of flights, and repealing Regulation (EEC) No 295/91

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE

EUROPEAN UNION,

Having regard to the Treaty establishing the European

Community, and in particular Article 80(2) thereof,

Having regard to the proposal from the Commission (1

),

Having regard to the opinion of the European Economic and

Social Committee (2

),

After consulting the Committee of the Regions,

Acting in accordance with the procedure laid down in Article

251 of the Treaty (3

), in the light of the joint text approved by

the Conciliation Committee on 1 December 2003,

Whereas:

(1) Action by the Community in the field of air transport

should aim, among other things, at ensuring a high level

of protection for passengers. Moreover, full account

should be taken of the requirements of consumer protection in general.

(2) Denied boarding and cancellation or long delay of flights

cause serious trouble and inconvenience to passengers.

(3) While Council Regulation (EEC) No 295/91 of 4

February 1991 establishing common rules for a denied

boarding compensation system in scheduled air transport (4

) created basic protection for passengers, the

number of passengers denied boarding against their will

remains too high, as does that affected by cancellations

without prior warning and that affected by long delays.

(4) The Community should therefore raise the standards of

protection set by that Regulation both to strengthen the

rights of passengers and to ensure that air carriers

operate under harmonised conditions in a liberalised

market.

(5) Since the distinction between scheduled and non-scheduled air services is weakening, such protection should

apply to passengers not only on scheduled but also on

non-scheduled flights, including those forming part of

package tours.

(6) The protection accorded to passengers departing from

an airport located in a Member State should be extended

to those leaving an airport located in a third country for

one situated in a Member State, when a Community

carrier operates the flight.

(7) In order to ensure the effective application of this Regulation, the obligations that it creates should rest with the

operating air carrier who performs or intends to

perform a flight, whether with owned aircraft, under dry

or wet lease, or on any other basis.

(8) This Regulation should not restrict the rights of the

operating air carrier to seek compensation from any

person, including third parties, in accordance with the

law applicable.

(9) The number of passengers denied boarding against their

will should be reduced by requiring air carriers to call

for volunteers to surrender their reservations, in

exchange for benefits, instead of denying passengers

boarding, and by fully compensating those finally denied

boarding.

17.2.2004 EN Official Journal of the European Union L 46/1

(

1

) OJ C 103 E, 30.4.2002, p. 225 and OJ C 71 E, 25.3.2003, p. 188.

(

2

) OJ C 241, 7.10.2002, p. 29.

(

3

) Opinion of the European Parliament of 24 October 2002 (OJ C 300

E, 11.12.2003, p. 443), Council Common Position of 18 March

2003 (OJ C 125 E, 27.5.2003, p. 63) and Position of the European

Parliament of 3 July 2003. Legislative Resolution of the European

Parliament of 18 December 2003 and Council Decision of 26

January 2004.

(

4

) OJ L 36, 8.2.1991, p. 5.
(10) Passengers denied boarding against their will should be

able either to cancel their flights, with reimbursement of

their tickets, or to continue them under satisfactory

conditions, and should be adequately cared for while

awaiting a later flight.

(11) Volunteers should also be able to cancel their flights,

with reimbursement of their tickets, or continue them

under satisfactory conditions, since they face difficulties

of travel similar to those experienced by passengers

denied boarding against their will.

(12) The trouble and inconvenience to passengers caused by

cancellation of flights should also be reduced. This

should be achieved by inducing carriers to inform

passengers of cancellations before the scheduled time of

departure and in addition to offer them reasonable rerouting, so that the passengers can make other arrangements. Air carriers should compensate passengers if they

fail to do this, except when the cancellation occurs in

extraordinary circumstances which could not have been

avoided even if all reasonable measures had been taken.

(13) Passengers whose flights are cancelled should be able

either to obtain reimbursement of their tickets or to

obtain re-routing under satisfactory conditions, and

should be adequately cared for while awaiting a later

flight.

(14) As under the Montreal Convention, obligations on operating air carriers should be limited or excluded in cases

where an event has been caused by extraordinary

circumstances which could not have been avoided even

if all reasonable measures had been taken. Such circumstances may, in particular, occur in cases of political

instability, meteorological conditions incompatible with

the operation of the flight concerned, security risks,

unexpected flight safety shortcomings and strikes that

affect the operation of an operating air carrier.

(15) Extraordinary circumstances should be deemed to exist

where the impact of an air traffic management decision

in relation to a particular aircraft on a particular day

gives rise to a long delay, an overnight delay, or the

cancellation of one or more flights by that aircraft, even

though all reasonable measures had been taken by the

air carrier concerned to avoid the delays or cancellations.

(16) In cases where a package tour is cancelled for reasons

other than the flight being cancelled, this Regulation

should not apply.

(17) Passengers whose flights are delayed for a specified time

should be adequately cared for and should be able to

cancel their flights with reimbursement of their tickets

or to continue them under satisfactory conditions.

(18) Care for passengers awaiting an alternative or a delayed

flight may be limited or declined if the provision of the

care would itself cause further delay.

(19) Operating air carriers should meet the special needs of

persons with reduced mobility and any persons accompanying them.

(20) Passengers should be fully informed of their rights in the

event of denied boarding and of cancellation or long

delay of flights, so that they can effectively exercise their

rights.

(21) Member States should lay down rules on sanctions

applicable to infringements of the provisions of this

Regulation and ensure that these sanctions are applied.

The sanctions should be effective, proportionate and

dissuasive.

(22) Member States should ensure and supervise general

compliance by their air carriers with this Regulation and

designate an appropriate body to carry out such enforcement tasks. The supervision should not affect the rights

of passengers and air carriers to seek legal redress from

courts under procedures of national law.

(23) The Commission should analyse the application of this

Regulation and should assess in particular the opportunity of extending its scope to all passengers having a

contract with a tour operator or with a Community

carrier, when departing from a third country airport to

an airport in a Member State.

(24) Arrangements for greater cooperation over the use of

Gibraltar airport were agreed in London on 2 December

1987 by the Kingdom of Spain and the United Kingdom

in a joint declaration by the Ministers of Foreign Affairs

of the two countries. Such arrangements have yet to

enter into operation.

(25) Regulation (EEC) No 295/91 should accordingly be

repealed,

HAVE ADOPTED THIS REGULATION:

Article 1

Subject

1. This Regulation establishes, under the conditions specified

herein, minimum rights for passengers when:

(a) they are denied boarding against their will;

(b) their flight is cancelled;

(c) their flight is delayed.

L 46/2 Official Journal of the European Union EN 17.2.2004
2. Application of this Regulation to Gibraltar airport is

understood to be without prejudice to the respective legal positions of the Kingdom of Spain and the United Kingdom with

regard to the dispute over sovereignty over the territory in

which the airport is situated.

3. Application of this Regulation to Gibraltar airport shall

be suspended until the arrangements in the Joint Declaration

made by the Foreign Ministers of the Kingdom of Spain and

the United Kingdom on 2 December 1987 enter into operation.

The Governments of Spain and the United Kingdom will

inform the Council of such date of entry into operation.

Article 2

Definitions

For the purposes of this Regulation:

(a) ‘air carrier’ means an air transport undertaking with a valid

operating licence;

(b) ‘operating air carrier’ means an air carrier that performs or

intends to perform a flight under a contract with a

passenger or on behalf of another person, legal or natural,

having a contract with that passenger;

(c) ‘Community carrier’ means an air carrier with a valid operating licence granted by a Member State in accordance with

the provisions of Council Regulation (EEC) No 2407/92 of

23 July 1992 on licensing of air carriers (1

);

(d) ‘tour operator’ means, with the exception of an air carrier,

an organiser within the meaning of Article 2, point 2, of

Council Directive 90/314/EEC of 13 June 1990 on package

travel, package holidays and package tours (2

);

(e) ‘package’ means those services defined in Article 2, point 1,

of Directive 90/314/EEC;

(f) ‘ticket’ means a valid document giving entitlement to transport, or something equivalent in paperless form, including

electronic form, issued or authorised by the air carrier or

its authorised agent;

(g) ‘reservation’ means the fact that the passenger has a ticket,

or other proof, which indicates that the reservation has

been accepted and registered by the air carrier or tour

operator;

(h) ‘final destination’ means the destination on the ticket

presented at the check-in counter or, in the case of directly

connecting flights, the destination of the last flight; alternative connecting flights available shall not be taken into

account if the original planned arrival time is respected;

(i) ‘person with reduced mobility’ means any person whose

mobility is reduced when using transport because of any

physical disability (sensory or locomotory, permanent or

temporary), intellectual impairment, age or any other cause

of disability, and whose situation needs special attention

and adaptation to the person's needs of the services made

available to all passengers;

(j) ‘denied boarding’ means a refusal to carry passengers on a

flight, although they have presented themselves for

boarding under the conditions laid down in Article 3(2),

except where there are reasonable grounds to deny them

boarding, such as reasons of health, safety or security, or

inadequate travel documentation;

(k) ‘volunteer’ means a person who has presented himself for

boarding under the conditions laid down in Article 3(2)

and responds positively to the air carrier's call for passengers prepared to surrender their reservation in exchange for

benefits.

(l) ‘cancellation’ means the non-operation of a flight which

was previously planned and on which at least one place

was reserved.

Article 3

Scope

1. This Regulation shall apply:

(a) to passengers departing from an airport located in the territory of a Member State to which the Treaty applies;

(b) to passengers departing from an airport located in a third

country to an airport situated in the territory of a Member

State to which the Treaty applies, unless they received

benefits or compensation and were given assistance in that

third country, if the operating air carrier of the flight

concerned is a Community carrier.

2. Paragraph 1 shall apply on the condition that passengers:

(a) have a confirmed reservation on the flight concerned and,

except in the case of cancellation referred to in Article 5,

present themselves for check-in,

— as stipulated and at the time indicated in advance and

in writing (including by electronic means) by the air

carrier, the tour operator or an authorised travel agent,

or, if no time is indicated,

— not later than 45 minutes before the published departure time; or

(b) have been transferred by an air carrier or tour operator

from the flight for which they held a reservation to another

flight, irrespective of the reason.

3. This Regulation shall not apply to passengers travelling

free of charge or at a reduced fare not available directly or

indirectly to the public. However, it shall apply to passengers

having tickets issued under a frequent flyer programme or

other commercial programme by an air carrier or tour

operator.

17.2.2004 EN Official Journal of the European Union L 46/3

(

1

) OJ L 240, 24.8.1992, p. 1.

(

2

) OJ L 158, 23.6.1990, p. 59.
4. This Regulation shall only apply to passengers transported by motorised fixed wing aircraft.

5. This Regulation shall apply to any operating air carrier

providing transport to passengers covered by paragraphs 1 and

2. Where an operating air carrier which has no contract with

the passenger performs obligations under this Regulation, it

shall be regarded as doing so on behalf of the person having a

contract with that passenger.

6. This Regulation shall not affect the rights of passengers

under Directive 90/314/EEC. This Regulation shall not apply in

cases where a package tour is cancelled for reasons other than

cancellation of the flight.

Article 4

Denied boarding

1. When an operating air carrier reasonably expects to deny

boarding on a flight, it shall first call for volunteers to

surrender their reservations in exchange for benefits under

conditions to be agreed between the passenger concerned and

the operating air carrier. Volunteers shall be assisted in accordance with Article 8, such assistance being additional to the

benefits mentioned in this paragraph.

2. If an insufficient number of volunteers comes forward to

allow the remaining passengers with reservations to board the

flight, the operating air carrier may then deny boarding to

passengers against their will.

3. If boarding is denied to passengers against their will, the

operating air carrier shall immediately compensate them in

accordance with Article 7 and assist them in accordance with

Articles 8 and 9.

Article 5

Cancellation

1. In case of cancellation of a flight, the passengers

concerned shall:

(a) be offered assistance by the operating air carrier in accordance with Article 8; and

(b) be offered assistance by the operating air carrier in accordance with Article 9(1)(a) and 9(2), as well as, in event of rerouting when the reasonably expected time of departure of

the new flight is at least the day after the departure as it

was planned for the cancelled flight, the assistance specified

in Article 9(1)(b) and 9(1)(c); and

(c) have the right to compensation by the operating air carrier

in accordance with Article 7, unless:

(i) they are informed of the cancellation at least two

weeks before the scheduled time of departure; or

(ii) they are informed of the cancellation between two

weeks and seven days before the scheduled time of

departure and are offered re-routing, allowing them to

depart no more than two hours before the scheduled

time of departure and to reach their final destination

less than four hours after the scheduled time of arrival;

or

(iii) they are informed of the cancellation less than seven

days before the scheduled time of departure and are

offered re-routing, allowing them to depart no more

than one hour before the scheduled time of departure

and to reach their final destination less than two hours

after the scheduled time of arrival.

2. When passengers are informed of the cancellation, an

explanation shall be given concerning possible alternative transport.

3. An operating air carrier shall not be obliged to pay

compensation in accordance with Article 7, if it can prove that

the cancellation is caused by extraordinary circumstances

which could not have been avoided even if all reasonable

measures had been taken.

4. The burden of proof concerning the questions as to

whether and when the passenger has been informed of the

cancellation of the flight shall rest with the operating air

carrier.

Article 6

Delay

1. When an operating air carrier reasonably expects a flight

to be delayed beyond its scheduled time of departure:

(a) for two hours or more in the case of flights of 1 500 kilometres or less; or

(b) for three hours or more in the case of all intra-Community

flights of more than 1 500 kilometres and of all other

flights between 1 500 and 3 500 kilometres; or

(c) for four hours or more in the case of all flights not falling

under (a) or (b),

passengers shall be offered by the operating air carrier:

(i) the assistance specified in Article 9(1)(a) and 9(2); and

(ii) when the reasonably expected time of departure is at least

the day after the time of departure previously announced,

the assistance specified in Article 9(1)(b) and 9(1)(c); and

(iii) when the delay is at least five hours, the assistance specified in Article 8(1)(a).

2. In any event, the assistance shall be offered within the

time limits set out above with respect to each distance bracket.

L 46/4 Official Journal of the European Union EN 17.2.2004
Article 7

Right to compensation

1. Where reference is made to this Article, passengers shall

receive compensation amounting to:

(a) EUR 250 for all flights of 1 500 kilometres or less;

(b) EUR 400 for all intra-Community flights of more than

1 500 kilometres, and for all other flights between 1 500

and 3 500 kilometres;

(c) EUR 600 for all flights not falling under (a) or (b).

In determining the distance, the basis shall be the last destination at which the denial of boarding or cancellation will delay

the passenger's arrival after the scheduled time.

2. When passengers are offered re-routing to their final

destination on an alternative flight pursuant to Article 8, the

arrival time of which does not exceed the scheduled arrival

time of the flight originally booked

(a) by two hours, in respect of all flights of 1 500 kilometres

or less; or

(b) by three hours, in respect of all intra-Community flights of

more than 1 500 kilometres and for all other flights

between 1 500 and 3 500 kilometres; or

(c) by four hours, in respect of all flights not falling under (a)

or (b),

the operating air carrier may reduce the compensation

provided for in paragraph 1 by 50 %.

3. The compensation referred to in paragraph 1 shall be

paid in cash, by electronic bank transfer, bank orders or bank

cheques or, with the signed agreement of the passenger, in

travel vouchers and/or other services.

4. The distances given in paragraphs 1 and 2 shall be

measured by the great circle route method.

Article 8

Right to reimbursement or re-routing

1. Where reference is made to this Article, passengers shall

be offered the choice between:

(a) — reimbursement within seven days, by the means

provided for in Article 7(3), of the full cost of the ticket

at the price at which it was bought, for the part or

parts of the journey not made, and for the part or parts

already made if the flight is no longer serving any

purpose in relation to the passenger's original travel

plan, together with, when relevant,

— a return flight to the first point of departure, at the

earliest opportunity;

(b) re-routing, under comparable transport conditions, to their

final destination at the earliest opportunity; or

(c) re-routing, under comparable transport conditions, to their

final destination at a later date at the passenger's convenience, subject to availability of seats.

2. Paragraph 1(a) shall also apply to passengers whose

flights form part of a package, except for the right to reimbursement where such right arises under Directive 90/314/EEC.

3. When, in the case where a town, city or region is served

by several airports, an operating air carrier offers a passenger a

flight to an airport alternative to that for which the booking

was made, the operating air carrier shall bear the cost of transferring the passenger from that alternative airport either to that

for which the booking was made, or to another close-by destination agreed with the passenger.

Article 9

Right to care

1. Where reference is made to this Article, passengers shall

be offered free of charge:

(a) meals and refreshments in a reasonable relation to the

waiting time;

(b) hotel accommodation in cases

— where a stay of one or more nights becomes necessary,

or

— where a stay additional to that intended by the

passenger becomes necessary;

(c) transport between the airport and place of accommodation

(hotel or other).

2. In addition, passengers shall be offered free of charge two

telephone calls, telex or fax messages, or e-mails.

3. In applying this Article, the operating air carrier shall pay

particular attention to the needs of persons with reduced mobility and any persons accompanying them, as well as to the

needs of unaccompanied children.

Article 10

Upgrading and downgrading

1. If an operating air carrier places a passenger in a class

higher than that for which the ticket was purchased, it may not

request any supplementary payment.

2. If an operating air carrier places a passenger in a class

lower than that for which the ticket was purchased, it shall

within seven days, by the means provided for in Article 7(3),

reimburse

(a) 30 % of the price of the ticket for all flights of 1 500 kilometres or less, or

17.2.2004 EN Official Journal of the European Union L 46/5
(b) 50 % of the price of the ticket for all intra-Community

flights of more than 1 500 kilometres, except flights

between the European territory of the Member States and

the French overseas departments, and for all other flights

between 1 500 and 3 500 kilometres, or

(c) 75 % of the price of the ticket for all flights not falling

under (a) or (b), including flights between the European

territory of the Member States and the French overseas

departments.

Article 11

Persons with reduced mobility or special needs

1. Operating air carriers shall give priority to carrying

persons with reduced mobility and any persons or certified

service dogs accompanying them, as well as unaccompanied

children.

2. In cases of denied boarding, cancellation and delays of

any length, persons with reduced mobility and any persons

accompanying them, as well as unaccompanied children, shall

have the right to care in accordance with Article 9 as soon as

possible.

Article 12

Further compensation

1. This Regulation shall apply without prejudice to a passenger's rights to further compensation. The compensation granted

under this Regulation may be deducted from such compensation.

2. Without prejudice to relevant principles and rules of

national law, including case-law, paragraph 1 shall not apply to

passengers who have voluntarily surrendered a reservation

under Article 4(1).

Article 13

Right of redress

In cases where an operating air carrier pays compensation or

meets the other obligations incumbent on it under this Regulation, no provision of this Regulation may be interpreted as

restricting its right to seek compensation from any person,

including third parties, in accordance with the law applicable.

In particular, this Regulation shall in no way restrict the operating air carrier's right to seek reimbursement from a tour

operator or another person with whom the operating air

carrier has a contract. Similarly, no provision of this Regulation

may be interpreted as restricting the right of a tour operator or

a third party, other than a passenger, with whom an operating

air carrier has a contract, to seek reimbursement or compensation from the operating air carrier in accordance with applicable relevant laws.

Article 14

Obligation to inform passengers of their rights

1. The operating air carrier shall ensure that at check-in a

clearly legible notice containing the following text is displayed

in a manner clearly visible to passengers: ‘If you are denied

boarding or if your flight is cancelled or delayed for at least

two hours, ask at the check-in counter or boarding gate for the

text stating your rights, particularly with regard to compensation and assistance’.

2. An operating air carrier denying boarding or cancelling a

flight shall provide each passenger affected with a written

notice setting out the rules for compensation and assistance in

line with this Regulation. It shall also provide each passenger

affected by a delay of at least two hours with an equivalent

notice. The contact details of the national designated body

referred to in Article 16 shall also be given to the passenger in

written form.

3. In respect of blind and visually impaired persons, the

provisions of this Article shall be applied using appropriate

alternative means.

Article 15

Exclusion of waiver

1. Obligations vis-à-vis passengers pursuant to this Regulation may not be limited or waived, notably by a derogation

or restrictive clause in the contract of carriage.

2. If, nevertheless, such a derogation or restrictive clause is

applied in respect of a passenger, or if the passenger is not

correctly informed of his rights and for that reason has

accepted compensation which is inferior to that provided for in

this Regulation, the passenger shall still be entitled to take the

necessary proceedings before the competent courts or bodies in

order to obtain additional compensation.

Article 16

Infringements

1. Each Member State shall designate a body responsible for

the enforcement of this Regulation as regards flights from

airports situated on its territory and flights from a third

country to such airports. Where appropriate, this body shall

take the measures necessary to ensure that the rights of passengers are respected. The Member States shall inform the

Commission of the body that has been designated in accordance with this paragraph.

L 46/6 Official Journal of the European Union EN 17.2.2004
2. Without prejudice to Article 12, each passenger may

complain to any body designated under paragraph 1, or to any

other competent body designated by a Member State, about an

alleged infringement of this Regulation at any airport situated

on the territory of a Member State or concerning any flight

from a third country to an airport situated on that territory.

3. The sanctions laid down by Member States for infringements of this Regulation shall be effective, proportionate and

dissuasive.

Article 17

Report

The Commission shall report to the European Parliament and

the Council by 1 January 2007 on the operation and the

results of this Regulation, in particular regarding:

— the incidence of denied boarding and of cancellation of

flights,

— the possible extension of the scope of this Regulation to

passengers having a contract with a Community carrier or

holding a flight reservation which forms part of a ‘package

tour’ to which Directive 90/314/EEC applies and who

depart from a third-country airport to an airport in a

Member State, on flights not operated by Community air

carriers,

— the possible revision of the amounts of compensation

referred to in Article 7(1).

The report shall be accompanied where necessary by legislative

proposals.

Article 18

Repeal

Regulation (EEC) No 295/91 shall be repealed.

Article 19

Entry into force

This Regulation shall enter into force on 17 February 2005.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Strasbourg, 11 February 2004.

For the European Parliament

The President

P. COX

For the Council

The President

M. McDOWELL

17.2.2004 EN Official Journal of the European Union L 46/7

Page 1

1 of 250 DOCUMENTS

THEODOROS GIANNOPOULOS, and ALEXANDRA GIANNOPOULOS, on behalf of themselves and all others similarly situated, Plaintiffs, v. IBERIA LÍNEAS 

AÉREAS DE ESPAÑA, S.A., Defendant.

No. 11 C 775

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF 

ILLINOIS, EASTERN DIVISION

2011 U.S. Dist. LEXIS 82304

July 27, 2011, Decided 

July 27, 2011, Filed

COUNSEL: [*1] For Theodoros Giannopoulos, Alexandra Giannopoulos, on behalf of themselves and all 

others similarly situated, Plaintiffs: Daniel O. Herrera, 

Jennifer Winter Sprengel, Cafferty Faucher LLP, Chicago, IL; Joseph Henry "Han Bates , III, Carney Williams 

Bates Bozeman & Pulliam, PLLC, Williams, LLP, Little 

Rock, AR.

For Iberia Lineas Aereas de Espana, S.A., Defendant: 

Anthony U. Battista, Christopher R. Christensen, Michael J Holland, LEAD ATTORNEYS, Condon & Forsyth, LLP, New York, NY; Brent R. Austin, Matthew J 

Caccamo, Michael Lee McCluggage, Wildman, Harrold, 

Allen & Dixon, LLP, Chicago, IL.

For International Airlines Group, S.A., Defendant: 

Christopher R. Christensen, LEAD ATTORNEY, Condon & Forsyth, LLP, New York, NY; Brent R. Austin, 

Matthew J Caccamo, Michael Lee McCluggage, Wildman, Harrold, Allen & Dixon, LLP, Chicago, IL.

JUDGES: Hon. JOAN HUMPHREY LEFKOW, United 

States District Judge.

OPINION BY: JOAN HUMPHREY LEFKOW

OPINION

OPINION AND ORDER

Theodoros and Alexandra Giannopoulos filed this 

putative class action lawsuit against Iberia Líneas Aéreas 

de España, S.A. 1("Iberia") alleging breach of contract 

based on Iberia's failure to pay compensation for their 

delayed flight as required by Iberia's conditions [*2] of 

contract and Regulation No. 261/2004 of the European 

Parliament and European Council ("EU 261"). 2 Four 

other cases founded on similar allegations have been 

filed in this district by the same plaintiffs' counsel against 

other airlines. See Polinovsky v. British Airways PLC, 

No. 11 C 779; Polinovsky v. Deutsche Lufthansa AG, No. 

11 C 780; Volodarskiy v. Delta Air Lines, Inc., No. 11 C 

782; Gurevich v. Compagnia Aereas Italiana, SPA, No. 

11 C 1890. Iberia has moved to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 

12(b)(6). For the following reasons, the motion [#29] is 

denied.

1 Plaintiffs have incorrectly identified the defendant's proper corporate name, which should be 

Iberia, Líneas Aéreas de España, S.A. Operadora, 

Sociedad Unipersonal.

2 Jurisdiction is founded on the Class Action 

Fairness Act, 28 U.S.C. § 1332(d).

BACKGROUND3

3 The facts recounted in this section are taken 

from the complaint and are presumed true for 

purposes of resolving the pending motion.

Plaintiffs, Illinois residents, purchased tickets to fly 

on Iberia to Europe. The tickets incorporated Iberia's 

conditions of contract. The conditions of contract include 

a notice to passengers that "[a]s [*3] established in [EU 
Page 2

2011 U.S. Dist. LEXIS 82304, *

261], compensation is fixed in the event of a flight cancellation unless the latter is due to extraordinary circumstances." Ex. 2 to Compl. at 2. They also provide 

that "[a]s established in [EU 261], in the event of a long 

delay in relation to the scheduled departure time of 

flight, passengers are entitled to immediate aid and assistance throughout the duration of the delay." Id. EU 

261 applies to passengers with confirmed tickets on 

flights departing from an airport located in an EU member state and flights departing from a non-EU member 

state to an airport in an EU member state if the operating 

carrier has an operating license granted by an EU member state. 4 Pursuant to EU 261, passengers on qualifying 

flights that are cancelled are entitled to a set amount of 

compensation so long as the cancellation was not caused 

by unavoidable extraordinary circumstances. 5 This 

compensation is separate from any other right a passenger may have to compensation. Although EU 261 does 

not explicitly provide compensation for passengers 

whose flights are delayed, the European Court of Justice 

("ECJ") has interpreted EU 261 to require treating passengers whose flights are delayed [*4] by three or more 

hours as passengers whose flights are cancelled for purposes of its compensation provision. Cases C-402/07 & 

C-432/07, Sturgeon v. Condor Flugdienst GmbH, 2009 

E.C.R. I-10923.

4 Iberia has such a license, granted by Spain.

5 Passengers are also not entitled to compensation if they are informed of the cancellation (1) at 

least two weeks prior to the scheduled departure 

time, (2) between two weeks and seven days before the scheduled departure time and are offered 

rerouting allowing them to depart no more than 

two hours before the scheduled departure time 

and to arrive at their final destination no more 

than four hours after the scheduled arrival time, 

or (3) within seven days of the scheduled departure time and are offered rerouting allowing them 

to depart no more than one hour before the scheduled departure time and to arrive at their final 

destination no more than two hours after the 

scheduled arrival time.

Plaintiffs were scheduled to depart on Iberia Flight 

6274 on May 9, 2010 from O'Hare International Airport 

in Chicago, Illinois to Madrid-Barajas Airport in Madrid, 

Spain. From Madrid, they were to continue to their final 

destination of Athens, Greece. Flight 6274 was [*5] 

delayed for more than three hours, arriving in Madrid 

more than three hours after the scheduled arrival time. 

Plaintiffs were informed of the delay only after their 

flight was scheduled to depart. They were rerouted 

through Vienna, Austria, where they were required to 

stay overnight. They ultimately reached Athens approximately twenty-four hours after their original scheduled 

arrival time. Plaintiffs filed a complaint seeking compensation through Iberia's website but only received a 

form email response from Iberia denying their request 

and indicating that compensation is only available in 

cases of overbooking.

LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) challenges 

a complaint for failure to state a claim upon which relief 

may be granted. Fed. R. Civ. P. 12(b)(6); Gen. Elec. 

Capital Corp. v. Lease Resolution Corp., 128 F.3d 1074, 

1080 (7th Cir. 1997). In ruling on a motion to dismiss, 

the court accepts as true all well-pleaded facts in the 

plaintiff's complaint and draws all reasonable inferences 

in the plaintiff's favor. Dixon v. Page, 291 F.3d 485, 486 

(7th Cir. 2002). In order to survive a 12(b)(6) motion, the 

complaint must not only provide the defendant with fair 

notice [*6] of the claim's basis, but must also establish 

that the requested relief is plausible on its face. Ashcroft 

v. Iqbal, U.S. , 129 S. Ct. 1937, 1949, 173 L. Ed. 

2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 

U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 

(2007). The allegations in the complaint must be 

"enough to raise a right of relief above the speculative 

level." Twombly, 550 U.S. at 555. At the same time, the 

plaintiff need not plead legal theories. Hatmaker v. 

Mem'l Med. Ctr., 619 F.3d 741, 743 (7th Cir. 2010). Rather, it is the facts that count.

ANALYSIS

I. Airline Deregulation Act

Iberia first argues that plaintiffs' claim is preempted 

by the Airline Deregulation Act ("ADA"), 49 U.S.C. § 

41713. The ADA was enacted to promote "maximum 

reliance on competitive market forces." Morales v. Trans 

World Airlines, Inc., 504 U.S. 374, 378, 112 S. Ct. 2031, 

119 L. Ed. 2d 157 (1992). To ensure that states do not 

undo federal deregulation of the airline industry, the 

ADA includes a preemption provision providing that "a 

State, political subdivision of a State, or political authority of at least 2 States may not enact or enforce a law, 

regulation, or other provision having the [*7] force and 

effect of law related to a price, route, or service of an air 

carrier that may provide air transportation under this 

subpart." 49 U.S.C. § 41713(b)(1). Thus, for a claim to 

be preempted, "(1) [a] state must 'enact or enforce' a law 

that (2) 'relates to' airline rates, routes, or services, either 

by expressly referring to them or by having a significant 

economic effect upon them." Travel All Over the World, 

Inc. v. Kingdom of Saudi Arabia, 73 F.3d 1423, 1432 

(7th Cir. 1996). State common law qualifies as a provision having the force and effect of law for purposes of 

the first prong of the preemption analysis. United Air-
Page 3

2011 U.S. Dist. LEXIS 82304, *

lines, Inc. v. Mesa Airlines, Inc., 219 F.3d 605, 607 (7th 

Cir. 2000). By not addressing it in their response, plaintiffs apparently concede that the second requirement is 

met. 6

6 In response to a similar motion to dismiss 

filed in Volodarskiy, plaintiffs there, represented 

by the same counsel as in this case, agree that 

their breach of contract claim relates to airline 

rates, routes, or services. See No. 11 C 782, Dkt. 

No. 32 at 12 n.4.

The Supreme Court carved out an exception to ADA 

preemption for certain breach of contract claims. In 

American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S. 

Ct. 817, 130 L. Ed. 2d 715 (1995), [*8] the Supreme 

Court held that the ADA does not "shelter airlines from 

suits alleging no violation of state-imposed obligations, 

but seeking recovery solely for the airline's alleged 

breach of its own, self-imposed undertakings." Id. at 228. 

Adjudication of the claim must not require "enlargement 

or enhancement [of the contract] based on state laws or 

policies external to the agreement." Id. at 233; see also 

Onoh v. Nw. Airlines, Inc., 613 F.3d 596, 600 (5th Cir. 

2000). Thus, for example, the portion of a contract claim 

seeking punitive damages as allowed by state law would 

be preempted, while that seeking compensatories would 

not be. Travel All, 73 F.3d at 1432 n.8; In re Jetblue 

Airways Corp. Privacy Litig., 379 F. Supp. 2d 299, 317 

(E.D.N.Y. 2005). As Wolens explains, "[a] remedy confined to a contract's terms simply holds parties to their 

agreements--in this instance, to business judgments an 

airline made public about its rates and services." Wolens, 

513 U.S. at 229.

Plaintiffs argue that Iberia voluntarily agreed to abide by EU 261 by incorporating it into the conditions of 

contract. Their claim, they posit, is therefore based on a 

self-imposed undertaking and fits within the Wolens 

[*9] exception. Iberia disputes that Wolens applies, arguing that the exception is a narrow one and that adjudicating plaintiffs' claim will require going beyond the 

contract. This contention is based on the fact that the ECJ 

has found that, for purposes of compensation under EU 

261, a flight delay of over three hours is considered 

equivalent to a cancellation. Iberia argues that it only 

agreed in its contract to provide compensation for cancelled flights, so plaintiffs' claim for compensation for a 

long delay enlarges Iberia's contractual undertaking. Iberia's argument is unpersuasive, however, for it agreed to 

pay compensation as established in EU 261. The ECJ 

has determined that EU 261 establishes a right to compensation in plaintiffs' case, provided that extraordinary 

circumstances for the delay cannot be shown. This decision is the binding interpretation of EU 261. See Case 

69/85, Wünsche Handelsgesellschaft GmbH & Co. v. 

Germany, 1986 E.C.R. 947, ¶ 13 ("[A] judgment in 

which the court gives a preliminary ruling on the interpretation or validity of an act of a community institution 

conclusively determines a question or questions of 

community law . . . ."); Stephen Breyer, Changing 

[*10] Relationships Among European Constitutional 

Courts, 21 Cardozo L. Rev. 1045, 1051 (2000) ("[T]he 

ECJ has final legal authority to interpret an EC law that 

is binding and 'supreme.'"). Thus, Iberia's agreement to 

pay compensation according to EU 261 must be read as 

an agreement to abide by EU 261, as interpreted by the 

ECJ. The ECJ's decision in Sturgeon, then, cannot be 

considered external to the contract.

The cases Iberia cites to support its position that 

paying compensation for delays is not a self-imposed 

undertaking are distinguishable. In Onoh, the Fifth Circuit concluded that the airline had not expressly incorporated the Schengen Agreements into its contract by 

mere reference to the need to comply with all applicable 

law. Onoh, 613 F.3d at 600-01. In McMullen v. Delta Air 

Lines, Inc., the airline similarly only agreed to comply 

with any applicable law that is in conflict with its international contract of carriage, leading the district court to 

find that the airline did not voluntarily undertake to only 

charge non-exempt customers a foreign tax. No. 08-1523 

JSW, 2008 U.S. Dist. LEXIS 75720, 2008 WL 4449587, 

at *5 (N.D. Cal. Sept. 30, 2008), aff'd, 361 F. App'x 757 

(9th Cir. 2010). But see In re Am. Airlines, Inc., Privacy 

Litig., 370 F. Supp. 2d 552, 565-66 (N.D. Tex. 2005) 

[*11] (breach of contract claim not preempted where 

laws plaintiffs relied on were considered to be incorporated into contract by reference that airline would be 

"bound to its privacy policy, except as required by law"). 

In Buck v. American Airlines, Inc., the First Circuit concluded that the Wolens exception did not apply because 

the federal regulation plaintiffs sought to enforce was not 

explicitly incorporated into the contract and considering 

it to be an implicit term incorporated into every contract 

would undermine the implied right of action doctrine. 

476 F.3d 29, 36-37 (1st Cir. 2007). Unlike generic references to "applicable law" or arguments that certain federal regulations are implicitly part of every contract, in 

this case, Iberia specifically refers to complying with EU 

261 in its conditions of contract. In Delta Air Lines, Inc. 

v. Black, the Texas Supreme Court held plaintiffs' claim 

preempted where plaintiffs sought a remedy that was not 

allowed by federal regulations that were specifically incorporated into the airline's contract. 116 S.W.3d 745, 

755-56 (Tex. 2003). But the federal regulations were 

considered to be self-imposed obligations, the problem 

being instead that plaintiffs [*12] sought to modify the 

contract and pursue a right external to its terms. Here, by 

contrast, plaintiffs seek to enforce a right provided by 

EU 261, despite Iberia's argument that Sturgeon was 

wrongly decided. If the ECJ had not interpreted EU 261 
Page 4

2011 U.S. Dist. LEXIS 82304, *

to allow for compensation in cases of delays of more 

than three hours, the outcome would be different, but, as 

it stands, plaintiffs' claim fits within the Wolens exception. 7

7 It is possible that the ADA should be read 

only to preempt claims that involve consideration 

of domestic, as opposed to foreign, laws and policies related to airline prices, routes, and services. 

Having concluded that Iberia expressly incorporated EU 261 into its contract, transforming a 

government regulation into a self-imposed obligation, the court need not delve further into the 

language, structure, and purpose of the ADA to 

determine if it reaches actions involving foreign 

law or international agreements.

II. Montreal Convention

Iberia next argues that plaintiffs' claim is preempted 

by the Montreal Convention. See Convention for the 

Unification of Certain Rules for International Carriage 

by Air, May 28, 1999, 2242 U.N.T.S. 350. The Montreal 

Convention was adopted in [*13] 1999 and came into 

force in the United States in November 2003. It replaced 

the Warsaw Convention, which was signed in 1929 and 

was intended to "achieve uniformity of rules governing 

claims arising from international air transportation." El 

Al Israel Airlines v. Tseng, 525 U.S. 155, 169, 119 S. Ct. 

662, 142 L. Ed. 2d 576 (1999) (quoting Eastern Airlines, 

Inc. v. Floyd, 499 U.S. 530, 552, 111 S. Ct. 1489, 113 L. 

Ed. 2d 569 (1990)). While the Montreal Convention retains the Warsaw Convention's focus on "limit[ing] air 

carriers' potential liability in the event of an accident," 

Sompo Japan Ins., Inc. v. Nippon Cargo Airlines Co., 

522 F.3d 776, 779 (7th Cir. 2008), it also "shows increased concern for the rights of passengers." Weiss v. El 

Al Israel Airlines, Ltd., 433 F. Supp. 2d 361, 365 

(S.D.N.Y. 2006).

The Montreal Convention "applies to all international carriage of persons, baggage or cargo performed by 

aircraft for reward." Montreal Convention art. 1. Article 

29, upon which Iberia bases its preemption argument, 

provides:

 In the carriage of passengers, baggage 

and cargo, any action for damages, however founded, whether under the Convention or in contract or in tort or otherwise, 

can [*14] only be brought subject to the 

conditions and such limits of liability as 

are set out in this Convention without 

prejudice to the question as to who are the 

persons who have the right to bring suit 

and what are their respective rights. In 

any such action, punitive, exemplary or 

any other non-compensatory damages 

shall not be recoverable.

Id. art. 29. As relevant here, article 19 provides that an 

air carrier is liable for damage caused by delay unless it 

can prove that it "took all measures that could reasonably 

be required to avoid the damage or that it was impossible 

for it . . . to take such measures." Id. art. 19. These provisions of the Montreal Convention are substantially similar to those of the Warsaw Convention, leading courts to 

look to cases interpreting the latter in determining the 

Montreal Convention's preemptive effect. See Narkiewicz-Laine v. Scandinavian Airlines Sys., 587 F. Supp. 

2d 888, 890 (N.D. Ill. 2008); Paradis v. Ghana Airways 

Ltd., 348 F. Supp. 2d 106, 111 (S.D.N.Y. 2004).

The Warsaw Convention preempts state law causes 

of action to the extent that they conflict with it. El Al, 

525 U.S. at 175 ("[T]he Convention's preemptive effect 

is clear: The treaty precludes [*15] passengers from 

bringing action under local law when they cannot establish air carrier liability under the treaty."). Courts are 

divided as to whether this means that a contract or tort 

claim falling within the Convention's scope may proceed 

under state law or must be brought exclusively under the 

Convention. Compare Husmann v. Trans World Airlines, 

Inc., 169 F.3d 1151, 1152-53 (8th Cir. 1999) (Warsaw 

Convention completely preempts state tort claim), with

Nankin v. Cont'l Airlines, Inc., No. CV 09-07851 MMM 

(RZx), 2010 U.S. Dist. LEXIS 11879, 2010 WL 342632, 

at *6 (C.D. Cal. Jan. 29, 2010) (the Montreal Convention 

does not preempt state law causes of action but instead 

"controls the remedies available and liabilities that can 

be imposed via those causes of action"). The answer in 

the Seventh Circuit is clear: the Warsaw Convention is 

not the exclusive ground for recovery, and state tort and 

contract claims, consistent with the Convention, may be 

brought as well. Sompo, 522 F.3d at 785 ("Article 24 

expressly contemplates that an action may be brought in 

contract or in tort."). There is no reason why this would 

change under the Montreal Convention, for article 29 

retains the Warsaw Convention's language from article 

[*16] 24 that claims may be brought "under the Convention or in contract or in tort or otherwise." See Cosgrove-Goodman v. UAL Corp., No. 10-cv-1908, 2010 

U.S. Dist. LEXIS 54825, 2010 WL 2197674, at *3 (N.D. 

Ill. June 2, 2010) ("[T]he Montreal Convention does not 

apply only to actions brought under this Convention, as 

that would render meaningless the words or in contract 

or in tort or otherwise." (internal quotation marks omitted)). Instead of preempting all state law claims, the 

Montreal Convention's conditions and limits on liability 

operate as affirmative defenses so as to ensure that carriers are only subject to liability as allowed by the Con-
Page 5

2011 U.S. Dist. LEXIS 82304, *

vention. Id.; Narkiewicz-Laine, 587 F. Supp. 2d at 890. 

Effectively, then, the Montreal Convention operates as a 

limitation on recovery not as a bar to a state law action. 8

Raddatz v. Bax Global, Inc., No. 07-CV-1020, 2008 U.S. 

Dist. LEXIS 51661, 2008 WL 2435582, at *3 (E.D. Wis. 

June 16, 2008).

8 Considering Sompo and subsequent cases in 

this district that have followed Sompo, the court 

does not find persuasive the Central District of Illinois's conclusion in Schoeffler-Miller v. Nw. 

Airlines, No. 08-CV-4012, 2008 U.S. Dist. 

LEXIS 93851, 2008 WL 4936737, at *3 (C.D. Ill. 

Nov. 17, 2008), that a negligence claim is completely preempted. [*17] Schoeffler-Miller did 

not address Sompo or the Convention's language 

allowing actions to be brought "in contract or in 

tort."

In its reply brief, Iberia argues that the Montreal 

Convention expressly prohibits plaintiffs' claim, as it 

does not allow for recovery of non-compensatory damages. Arguments first raised in reply, however, are 

waived. Dexia Credit Local v. Rogan, 629 F.3d 612, 625 

(7th Cir. 2010). This is because "a reply brief containing 

new theories deprives the respondent of an opportunity 

to brief those new issues." Wright v. United States, 139 

F.3d 551, 553 (7th Cir. 1998). Further, the argument 

raises an affirmative defense, which is only properly a 

basis for dismissal on a Rule 12(b)(6) motion if the allegations of the complaint demonstrate that plaintiffs have 

pleaded themselves out of court. United States v. Lewis, 

411 F.3d 838, 842 (7th Cir. 2005). Plaintiffs have alleged 

that EU 261 provides "standardized compensation --

separate from individualized compensation which may 

be provided by other laws upon individualized proof." 

Compl. ¶ 8. Such standardized compensation would appear to qualify as "non-compensatory damages" prohibited by Article 29 of the Montreal Convention. [*18] 

Yet, in their prayer for relief, plaintiffs request "actual, 

compensatory damages in an amount to be determined at 

trial." Without further briefing on the issue, the court will 

not find plaintiffs' claim to be precluded by the Montreal 

Convention. 9

9 The ECJ has determined that article 6 of EU 

261, which provides that delayed passengers may 

be entitled to certain assistance such as refreshments, meals, and accommodation, is not inconsistent with the Montreal Convention. Case 

C-344/04, Int'l Air Transp. Ass'n v. Dep't of 

Transp., 2006 ECJ EUR-lex LEXIS 1818 (Jan. 

10, 2006). It has not addressed the compensation 

requirement in case of cancellation. The questions of whether the Montreal Convention would 

govern cancellation claims, which do not deal 

with delay but rather nonperformance, and 

whether delays longer than three hours qualify as 

nonperformance under the Convention have not 

been addressed by the parties.

III. Air Transport Agreement

Iberia further argues that, pursuant to the Air Transport Agreement between the United States and the European Union, EU 261 does not apply to flights departing 

from the United States. The Air Transport Agreement 

was entered into by the United States, [*19] the European Community, and EU member states in 2007. See

United States-European Union Air Transport Agreement, 

Apr. 27, 30, 1997, 46 I.L.M. 470. Article 7 provides:

 1. The laws and regulations of a Party 

relating to the admission to or departure 

from its territory of aircraft engaged in 

international air navigation, or to the operation and navigation of such aircraft 

while within its territory, shall be applied 

to the aircraft utilised by the airlines of 

the other Party, and shall be complied 

with by such aircraft upon entering or departing from or while within the territory 

of the first Party.

2. While entering, within, or leaving 

the territory of one Party, the laws and 

regulations applicable within that territory 

relating to the admission to or departure 

from its territory of passengers, crew or 

cargo on aircraft (including regulations 

relating to entry, clearance, immigration, 

passports, customs and quarantine or, in 

the case of mail, postal regulations) shall 

be complied with by, or on behalf of, such 

passengers, crew or cargo of the other 

Party's airlines.

Id. art. 7. Article 7 is not an exclusivity provision; instead, it seeks to ensure only that the laws of a party related to [*20] admission and departure are respected 

while an airline operates within that party's territory. Its 

plain language indicates that it reaches laws related to 

subjects like immigration and customs, not consumer 

protection. As to consumer protection, the contracting 

parties only affirmed in the Air Transport Agreement the 

"importance of protecting consumers." Id. art. 16. Thus, 

the Air Transport Agreement does not appear to have any 

bearing on plaintiffs' claim. But if it did, in suggesting 

that consumers should be protected and each party's laws 

should be respected, it actually supports the applicability 
Page 6

2011 U.S. Dist. LEXIS 82304, *

of EU 261 to plaintiffs' flight departing from Chicago 

and arriving in an EU member state.

IV. Exhaustion of Remedies

Iberia's next argument is that plaintiffs' claim should 

be dismissed because they failed to exhaust available 

remedies in the EU prior to filing suit here. This argument does not have merit, either. Plaintiffs need not anticipate or defuse the issue of exhaustion, an affirmative 

defense, in their complaint. See Jones v. Bock, 549 U.S. 

199, 212, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007) 

(prisoner litigation); Laouini v. CLM Freight Lines, Inc., 

586 F.3d 473, 475 (7th Cir. 2009) [*21] (Title VII). But 

regardless, the court is not convinced that exhaustion is 

required.

A. Administrative Exhaustion

Plaintiffs are using a breach of contract action as the 

vehicle to enforce EU 261 in the United States. There is 

nothing in Iberia's contract that requires plaintiffs to exhaust any available administrative remedies prior to filing suit. Even if this were a proceeding directly under 

EU 261, the regulation on its face does not explicitly 

require exhaustion of administrative remedies. While 

each member state is required to establish a responsible 

body for enforcing the regulation, passengers are not 

required by EU 261 to complain to this body prior to 

filing suit. Instead, EU 261 provides only that passengers 

"may complain" to this body while leaving open the option of resorting to the court system. EU 261 art. 16. 

Even the EU complaint form Iberia submitted with its 

briefing does not speak in mandatory terms about the 

procedure to be followed in seeking to enforce EU 261. 

See Ex. I to Def.'s Mem. There thus appears to be nothing by way of administrative exhaustion that prevents 

plaintiffs from pursuing their case in this court without 

having complained to one of the enforcement [*22] 

bodies established under the regulation.

B. Exhaustion as a Principle of International Law

Alternatively, Iberia contends that international law 

requires exhaustion of local remedies prior to plaintiffs' 

turning to a foreign or international forum to pursue their 

claim. The Seventh Circuit has suggested in dicta that 

"[i]t may be that a requirement for exhaustion is itself a 

basic principle of international law." Enahoro v. Abubakar, 408 F.3d 877, 886 (7th Cir. 2005); see also Restatement (Third) of Foreign Relations Law of the United 

States § 713 cmt. f ("Under international law, ordinarily 

a state is not required to consider a claim by another state 

for an injury to its national until that person has exhausted domestic remedies, unless such remedies are 

clearly sham or inadequate, or their application is unreasonably prolonged."). This supposed international exhaustion principle appears to focus on situations involving alleged human rights violations and, as applied in the 

United States, possibly to cases brought under the Alien 

Tort Claims Act ("ATCA"), 28 U.S.C. § 1350, or the 

Torture Victim Protection Act ("TVPA"), 28 U.S.C. § 

1350, note, § 2(b). 10 See Enahoro, 408 F.3d at 890 n.6 

[*23] (Cudahy, J., dissenting) ("Exhaustion of remedies 

requirements are a well-established feature of international human rights law." (citing, inter alia, human rights 

treaties)). The TVPA contains an explicit exhaustion 

requirement, 28 U.S.C. § 1350, note, § 2(b) ("A court 

shall decline to hear a claim under this section if the 

claimant has not exhausted adequate and available remedies in the place in which the conduct giving rise to the 

claim occurred."), while ATCA does not. 11 See Flomo v. 

Firestone Nat'l Rubber Co., LLC, F.3d , 2011 

U.S. App. LEXIS 14179, 2011 WL 2675924, at *11 (7th 

Cir. July 11, 2011). Plaintiffs' claim does not fall within 

the areas in which exhaustion is typically required by 

international law. But the fact that plaintiffs have not 

sought to recover in a European court may be relevant to 

determining whether the court should decline to exercise 

jurisdiction over their claim as a matter of international 

comity. See id. ("[A] U.S. court might, as a matter of 

international comity, stay an Alien Tort suit that had 

been filed in the U.S. court, in order to give the courts of 

the nation in which the violation had occurred a chance 

to remedy it, provided that the nation seemed willing and 

[*24] able to do that.").

10 While ATCA provides for jurisdiction only 

over tort suits brought by aliens, the TVPA provides a cause of action to both aliens and United 

States citizens. Enahoro, 408 F.3d at 887-88 

(Cudahy, J., dissenting).

11 The European Commission advocated for 

exhaustion in an amicus brief to the Supreme 

Court in an ATCA case. See Sosa v. Alvarez-Machain, 542 U.S. 692, 733 n.21, 124 S. Ct. 

2739, 159 L. Ed. 2d 718 (2004) ("[B]asic principles of international law require that before asserting a claim in a foreign forum, the claimant 

must have exhausted any remedies available in 

the domestic legal system, and perhaps in other 

forums such as international claims tribunals."). 

But the Supreme Court noted only that it "would 

certainly consider this requirement in an appropriate case," without specifying what such a case 

would be. Id. Just recently, the Seventh Circuit 

rejected the argument that exhaustion is required 

in the nation in which an alleged violation of 

customary international law occurred, characterizing the implications of such a requirement as 

"border[ing] on the ridiculous." Flomo, 2011 U.S. 

App. LEXIS 14179, 2011 WL 2675924, at *11.
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2011 U.S. Dist. LEXIS 82304, *

V. International Comity

As a last resort, Iberia argues that [*25] this court 

should, in its discretion, decline to adjudicate plaintiffs' 

claim on international comity grounds. In its standard 

formulation, comity "is neither a matter of absolute obligation, on the one hand, nor of mere courtesy and good 

will, upon the other. But it is the recognition which one 

nation allows within its territory to the legislative, executive or judicial acts of another nation, having due regard 

both to international duty and convenience, and to the 

rights of its own citizens, or of other persons who are 

under the protection of its laws." Hilton v. Guyot, 159 

U.S. 113, 163-64, 16 S. Ct. 139, 40 L. Ed. 95 (1895).

Iberia bases its comity argument on two grounds. 

First, it claims that the EU has established a comprehensive enforcement mechanism for EU 261 that would be 

disturbed by this court's adjudication of a claim involving the regulation. As discussed above, the court does not 

find this argument convincing. While EU 261 does provide that each member state shall designate a body to be 

charged with enforcing the regulation, it also clearly allows aggrieved passengers to pursue their rights in court. 

See EU 261, preamble (22) ("Member States should ensure and supervise [*26] general compliance by their 

air carriers with this Regulation and designate an appropriate body to carry out such enforcement tasks. The 

supervision should not affect the rights of passengers and 

air carriers to seek legal redress from courts under procedures of national law."). Although Iberia claims that 

European enforcement was intended to be exclusive, it 

provides no support for this contention nor has the court 

been able to find any. The fact that plaintiffs did not 

pursue their claim in a European court does tilt the balance slightly in favor of declining to adjudicate their 

claim, but plaintiffs' choice of forum is entitled to some 

deference as well. 12

12 While unspoken, Iberia clearly would rather 

address plaintiffs' claim in a European court, 

where plaintiffs would not have the option of 

pursuing a class action. This would effectively 

lessen Iberia's potential exposure because of the 

relatively small value of each passenger's claim 

and the low likelihood of United States citizens 

bringing suit for an EU 261 violation in a foreign 

forum. The unavailability of a class action device 

in Europe may cut in favor of this court declining 

jurisdiction, as the EU may not have contemplated [*27] having the regulation enforced in a 

mass action. The lack of a class action mechanism in Europe should not be construed as depriving plaintiffs of a forum, as they would still be 

able to pursue their claim there individually. See 

Aguinda v. Texaco, Inc., 142 F. Supp. 2d 534, 

(S.D.N.Y. 2001) ("The class action mechanism, 

added to the Federal Rules of Civil Procedure in 

1937, is ultimately nothing more than a convenient procedural device, which most of the 

world's nations have chosen not to adopt and the 

merits of which continue to be debated even in 

the United States. Its absence does not ordinarily 

render a foreign forum 'inadequate' for purposes 

of forum non conveniens analysis." (citations 

omitted) (internal quotation marks omitted)). It 

may, however, change the plaintiffs' economic 

calculus. As Iberia does not pursue this argument, 

and in fact states that it is outside the scope of its 

motion, see Reply at 12 n.15, the court need not 

consider it further.

Second, Iberia argues that because courts in EU 

member states have the ability to refer questions of interpretation directly to the ECJ (an option a non-EU 

court does not have), dismissal is warranted. See Info. 

Res., Inc. v. Dun & Bradstreet Corp., 127 F. Supp. 2d 

411, 417 (S.D.N.Y. 2000) [*28] (declining to exercise 

supplemental jurisdiction over a claim under the Treaty 

of Rome where, among other things, a European court 

would have the option of seeking an opinion from the 

ECJ while the federal court would not). This is particularly the case, according to Iberia, because the ECJ's 

Sturgeon decision is allegedly in doubt. While the ECJ 

has pending before it a referral that asks the ECJ to reevaluate Sturgeon, this court will be just as able as a European court to apply the ECJ's forthcoming ruling and 

could, if necessary, stay a merits decision on compensation for passengers on flights delayed for over three 

hours until the ECJ addresses the questions before it. 

Several courts in EU member states have done this, and 

it is not an unheard of procedure in this court. Of course, 

European courts are more familiar with EU 261 and its 

application, but the court will not be faced with an area 

of law so complicated that declining jurisdiction would 

be prudent. Cf. In re Air Cargo Shipping Servs. Antitrust 

Litig., No. MD 06-1775(JG)(VVP), 2008 U.S. Dist. 

LEXIS 107882, 2008 WL 5958061, at *33-34 (E.D.N.Y. 

Sept. 26, 2008) ("While United States courts routinely 

apply foreign law, the cases cited by plaintiffs grappled 

[*29] with the comparatively straightforward application 

of foreign laws of property, contract and tort, as opposed 

to foreign antitrust law."), report and recommendation 

aff'd in part, 2009 U.S. Dist. LEXIS 97365, 2009 WL 

3443405 (E.D.N.Y. Aug. 21, 2009). As the court is not 

convinced that international comity warrants dismissal, it 

will allow plaintiffs' contract claim to proceed in this 

forum.

CONCLUSION AND ORDER
Page 8

2011 U.S. Dist. LEXIS 82304, *

For the foregoing reasons, Iberia's motion to dismiss 

[#29] is denied. Iberia has until August 10, 2011 to answer the complaint.

Dated: July 27, 2011

Enter: /s/ Joan Humphrey Lefkow

JOAN HUMPHREY LEFKOW

United States District Judge

Page 1

1 of 1 DOCUMENT

PAVEL POLINOVSKY and ILONA POLINOVSKY, and HAS-PETER 

BAUMEISTER, on behalf of themselves and all others similarly situated, Plaintiffs, 

v. DEUTSCHE LUFTHANSA, AG, Defendants.

Case No. 11 CV 780

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF 

ILLINOIS, EASTERN DIVISION

2012 U.S. Dist. LEXIS 44363

March 30, 2012, Decided 

March 30, 2012, Filed

COUNSEL: [*1] For Pavel Polinovsky, On behalf of 

themselves and all others similarly situated, Ilona 

Polinovsky, On behalf of themselves and all others similarly situated, Plaintiffs: Daniel O. Herrera, Jennifer 

Winter Sprengel, Cafferty Faucher LLP, Chicago, IL; 

Joseph Henry "Han Bates, III, Carney Williams Bates 

Pulliam & Bowman, PLLC, Little Rock, AR.

For Hans-Peter Baumeister, On behalf of themselves and 

all others similarly situated, Plaintiff: Joseph Henry "Han 

Bates, III, Carney Williams Bates Pulliam & Bowman, 

PLLC, Little Rock, AR.

For Deutsche Lufthansa AG, Defendant: Anthony U. 

Battista, Christopher R. Christensen, Michael J Holland, 

LEAD ATTORNEYS, Condon & Forsyth, LLP, New 

York, NY; Brent R. Austin, Matthew J Caccamo, Edwards Wildman Palmer LLP, Chicago, IL; Michael Lee 

McCluggage, Wildman, Harrold, Allen & Dixon, LLP, 

Chicago, IL.

JUDGES: Honorable Sharon Johnson Coleman. Magistrate Judge Maria Valdez.

OPINION BY: Sharon Johnson Coleman

OPINION

MEMORANDUM OPINION AND ORDER

Plaintiffs, Pavel Polinovsky , Ilona Polinovsky and

Hans-Peter Baumeister, individually and on behalf of all 

others similarly situated (the "Class"), bring this putative 

class action for breach of contract against Defendant 

Deutsche Lufthansa AG [*2] ("Lutfhansa") based upon 

its failure to comply with Regulation No. 261/2004 of 

the European Parliament and European Council ("EU 

261"). Defendant has moved to dismiss plaintiffs' complaint under the Federal Rules of Civil Procedure 

12(b)(6). For the following reasons, the motion is denied.

BACKGROUND

Plaintiffs Pavel and Ilona Polinovsky ("the 

Polinovskys") are residents of Illinois and were confirmed passengers on Lufthansa Flight 467 scheduled to 

depart from Miami, Florida to Dusseldorf, Germany on 

December 18, 2010 at 6:25 PM. From Dusseldorf, the 

Polinovskys had a connecting flight scheduled to arrive 

at Warsaw on Sunday, December 19, 2010 at 12:05. As 

with all United States passengers traveling to Europe, 

plaintiffs' ticket with Lufthansa incorporated a contract, 

(the "Conditions of Carriage"), that provided certain 

remedies pursuant to EU 261. The Conditions of Contract state that "[i]n the case of a flight cancellation or 

flight delay, we offer assistance and compensation to the 

concerned passengers according to the [EU 261]." Def.'s 

Ex. C art. 9.2.2. Pursuant to EU 261 passengers on certain flights that have been cancelled are entitled to a 

specified amount of compensation as [*3] long as the 

cancellation was not caused by unavoidable extraordinary circumstances. EU 261, however, does not explicitly provide compensation for passengers whose flights are 

delayed. Instead, the European Court of Justice ("ECJ"), 

has interpreted EU 261 to make no distinction between 

passengers whose flights have been delayed by three or 
Page 2

2012 U.S. Dist. LEXIS 44363, *

more hours and passengers whose flights have been cancelled. Sturgeon v. Condor Fludienst GmbH, 2009 

E.C.R. I-10923.

On the day of departure, the Polinovskys' flight was 

delayed and as a result they missed their connecting 

flight in Dusseldorf. The Polinovskys ultimately suffered 

a loss of time in excess of three hours. The Polinovskys 

were not offered re-routing nor compensation for this 

delay.

Additionally, plaintiff Hans-Peter Baumeister 

("Baumeister") is a resident of California and was a confirmed passenger on Lufthansa Flight 1371 scheduled to 

depart from Stuttgart, Germany on October 4, 2010 at 

1:20 PM and arrive in Munich, Germany. Baumeister 

had a connecting flight scheduled to depart from Munich 

at 4:15 PM and arrive in San Francisco, California. 

Baumeister's ticket also included a contract with 

Lufthansa that provided remedies under EU 261. [*4] 

Baumeister's flight was cancelled and he was not offered 

an opportunity to re-route his travel plans nor compensation for his delay.

Because plaintiffs have not received compensation 

for their cancelled or delayed flights, plaintiffs claim that 

Lufthansa has violated its own Conditions of Carriage. 

Consequently, plaintiffs have filed this punitive class 

action for breach of contract.

LEGAL STANDARD

A motion under Rule 12(b)(6) challenges the sufficiency of the complaint to state a claim upon which relief 

may be granted. Christensen v. County of Boone, 483 

F.3d 454, 458 (7th Cir. 2007). Pursuant to the federal 

notice pleading standard, a complaint need only provide 

"a short and plain statement of the claim" showing that 

the plaintiff is entitled to relief and sufficient to provide 

the defendant with fair notice of the claim and its basis. 

Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 

2008). In order to withstand a motion to dismiss under 

12(b)(6), a plaintiff's complaint "must contain sufficient 

factual matter, accepted as true, to 'state a claim to relief 

that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 

662, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009) 

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 

127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). [*5] For a 

claim to have facial plausibility, a plaintiff must plead 

"factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Thus, the complaint need not set 

forth "detailed factual allegations," but it must plead 

facts that "raise a right to relief above the speculative 

level. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 

127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

DISCUSSION

1. Airline Deregulation Act

Defendant first argues that plaintiffs' claim should 

be dismissed because it is preempted by the Airline Deregulation Act ("ADA"). In order to ensure that states 

would not ignore federal airline regulation in favor of 

regulation of their own, the ADA provides that "a State, 

political subdivision of a State, or political authority of at 

least 2 States may not enact or enforce a law, regulation, 

or other provision having the force and effect of law related to a price, route, or service of an air carrier that 

may provide air transportation under this subpart." 49 

U.S.C. § 41713 (b)(1); Morales v. Trans World Airlines, 

Inc., 504 U.S. 374, 378, 112 S.Ct. 2031, 119 L. Ed. 2d 

157 (1992). Essentially, the ADA displaces [*6] all 

state law, including those that "fall within its sphere" that 

relate to an air carrier's price, routes and services. Morales, 504 U.S. 387. Therefore, state law causes of action 

are preempted by the ADA when two elements are present: (1) the claim relates to airline prices, routes or services; and (2) the claim involves the enactment or enforcement of a state law, regulation or provision, including state common law. Travel All Over the World, Inc. v. 

Kingdom of Saudi Arabia, 73 F.3d 1423, 1432 (7th Cir. 

1996); United Airlines, Inc. v. Mesa Airlines, Inc. 219 

F.3d 605, 607 (7th Cir. 2000). Here, defendant argues 

that the plaintiffs' claim meets both of these elements and 

therefore should be preempted.

In response, plaintiffs argue that the exception to 

ADA preemption established in American Airlines v. 

Wolens exempts their claim from dismissal. In Wolens, 

the Supreme Court articulated an exception to ADA 

preemption for routine breach of contract claims "seeking recovery for an airline's breach of its own self imposed undertakings." American Airlines v. Wolens, 513 

U.S. 219, 115 S. Ct. 817, 130 L. Ed. 2d 715 (1995). To 

avoid ADA preemption under Wolens, a breach of contract claim [*7] must be based on the parties' own contract, with no enlargement or enhancement through state 

laws or policies external to the agreement. Id., at 233. 

Plaintiffs' argue that because EU 261 is incorporated into 

Lufthansa's Conditions of Carriage Agreement, providing compensation for flights delayed more than 3 hours 

constitutes Lufthansa's own self imposed undertaking.

Lufthansa, however, disagrees. Lufthansa argues 

that compensation for delayed flights is governed by 

Section 14.4.1 in its Conditions of Carriage which states 

that Lufthansa will provide delayed passengers assistance and a ticket refund. Therefore, applying the EU 

261 and the aforementioned Sturgeon decision would 

enlarge or enhance the contract that it has made with 

plaintiffs, which is expressly prohibited by the ADA.
Page 3

2012 U.S. Dist. LEXIS 44363, *

Section 9.2.2 of the Lufthansa's Conditions of Carriage Agreement specifically states that, "[I]n the case of 

a flight cancellation or flight delay we offer assistance 

and compensation to the concerned passengers according 

to [EU261]." Therefore, Lufthansa's reliance on Section 

14.4.1 of its Conditions of Carriage is insufficient. Further, the ECJ, through the Sturgeon decision, has established that EU 261 [*8] offers a right to compensation 

to passengers that have experienced a delay of three 

hours or more that is not the result of extraordinary circumstances. Therefore, the ECJ's decision interpreting 

EU 261 cannot be construed as an external expansion of 

the Lufthansa's contract with plaintiffs, but instead serves 

as guidance on how to apply regulation EU 261.

Further, the primary cases cited in Lufthansa's briefs 

are distinguishable. In Onoh, the court concluded that a 

mere reference to the need for the airline to comply with 

"all applicable laws" did not specifically incorporate the 

Schengen Agreement into its contract. Onoh v. Northwest Airlines, Inc., 613 F.3d 596, 601 (5th Cir. 2010). 

Similarly, in McMullen v. Delta Airline, Inc., the court 

did not find that an airline agreed to only charge certain 

customers a foreign tax when it agreed to comply with 

any applicable law that conflicts with its international 

contract of carriage. No. 08-1523, 2008 U.S. Dist. LEXIS 75720, 2008 WL 4449587, at *1 (N.D. Cal. Sept. 30, 

2008). In those cases, the courts rejected the argument 

that a generic boilerplate reference to compliance with 

all "applicable law" incorporated certain specific regulations into the contracts at issue. [*9] In contrast, 

Lufthansa's contract specifically referenced EU 261 and 

included language stating its intent to provide compensation according to EU 261 regulations. Because plaintiffs 

are seeking to enforce their right to compensation as 

provided under EU 261, the compensation plaintiffs are 

seeking constitutes Lufthansa's own undertaking. Therefore, plaintiff's breach of contract claim falls within the 

Wolens exception and is not preempted by the ADA.

2. Montreal Convention

Next, Lufthansa argues that plaintiffs' claim should 

be preempted by Article 19 of the Montreal Convention. 

The Montreal Convention, which replaced the Warsaw 

Convention in 2003, is a self-executing treaty of the 

United States that consolidates and unifies "certain rules 

for international carriage by air." Montreal Convention, 

Preamble. Specifically, it provides passengers the right to 

damages arising from "any carriage in which, according 

to the Agreement between the parties, the place of departure and the place of destination . . . are situated . . . 

within the territory of two State Parties." Id. art. 1(2). 

Lufthansa argues that because the plaintiffs' claim stems 

from travel between signatory countries, namely [*10] 

the United States, Germany and Poland, the Montreal 

Convention should govern their claims. Under Article 19 

of the Montreal Convention, a passenger has a right to 

limited compensation in the event of a flight delay. 

Lufthansa argues that Article 19 applies to plaintiffs' 

claim therefore their claim should be dismissed from this 

Court.

It is undisputed that the Montreal Convention 

preempts state law causes of action that are in conflict 

with the provisions of the Convention. El Al Israel Airlines, Ltd v. Tseng, 525 U.S. 155, 175, 119 S. Ct. 662, 

142 L. Ed. 2d 576. 525 U.S. 155, 119 S.Ct. 662, 142 L. 

Ed. 2d 576 (1999). Courts are divided, however, as to 

whether this means that a contract or tort claim falling 

within the scope of the Convention may proceed under 

state law or must be brought under the Convention. See 

Husmann v. TransWorld Airlines, Inc., 169 F.3d 1151, 

1152-53 (8th Cir. 1999); but see Nankin v. Cont'l Airlines, Inc., No. CV 09-07851 MMM (RZx), 2010 U.S. 

Dist. LEXIS 11879, 2010 WL 342632, at *6 (C.D. Cal. 

Jan. 29, 2010). 1 Despite this division, the Seventh Circuit has previously decided that the Warsaw Convention 

is not the exclusive ground for recovery these claims. 

Sompo, 522 F.3d at 785. Therefore, state contract and 

tort claims, consistent with [*11] the Warsaw Convention, are not preempted. Id. In reaching this decision, the 

Seventh Circuit relied upon the language of Article 24 of 

the Warsaw Convention which suggests that an action 

may be brought "in contract or tort or otherwise." Id. at 

776. Article 29 of the Montreal Convention utilizes language similar to Article 24 of the Warsaw Convention 

and states that:

 In the carriage of passengers, baggage 

and cargo, any action for damages, however founded, whether under the Convention or in contract or in tort or otherwise, 

can only be brought subject to the conditions and such limits of liability as are set 

out in this Convention without prejudice 

to the question as to who are the persons 

who have the right to bring suit and what 

are their respective rights. In any such action punitive, exemplary or any other 

non-compensatory damages shall not be 

recoverable. Id. Art. 29 (emphasis added).

Therefore, the Seventh Circuit's holding in Sompo applies to the Montreal Convention as well. Cosgrove-Goodman v. UAL Corp., No. 10-cv-1908, 2010 

U.S. Dist. LEXIS 54825, 2010 WL 2197674, at *3 (N.D. 

Ill. June 2, 2010). Accordingly, plaintiffs' claims are not 

preempted by the Montreal Convention. 2
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2012 U.S. Dist. LEXIS 44363, *

1 Because they both incorporate [*12] the 

same language, courts often rely upon cases interpreting the Warsaw Convention to determine 

the preemptive effect of the Montreal Convention.

2 In its reply brief, Lufthansa further argues 

that the Montreal Convention prohibits plaintiffs' 

claim because the Montreal Convention does not 

allow for the recovery non-compensatory damages. Arguments, however, first raised in the reply brief are waived. Dexia Credit Local v. 

Rogan, 629 F.3d 612, 625 (7th Cir. 2010). 

Therefore, this Court will not decide whether 

plaintiffs' claims are precluded under the Montreal Convention at this time without plaintiffs' having an opportunity to respond to Lufthansa's 

newly raised argument regarded damages.

3. Air Transport Agreement

Lufthansa's next argument applies only to the 

Polinovskys' claims. Lufthansa contends that the 

Polinovskys' claim fails because, pursuant to the Air 

Transport Agreement ("ATA"), EU 261 does not apply 

to flights departing the United States. The ATA is an 

agreement entered into between the United States and the 

European Community that states:

 While entering within or leaving the 

territory of one Party, the laws and regulations applicable within that territory relating to the admission [*13] to or departure from its territory of passengers, 

crew or cargo on aircraft . . . shall be 

complied with by, or on behalf of, such 

passengers, crew or cargo of the other 

Party's airlines. Air Transport Agreement, 

Article 7(2).

Lufthansa believes it should not be compelled to abide 

by EU 261 regulations without the express approval of 

the United States because the ATA makes no mention of 

EU 261.

In its motion to dismiss, Lufthansa cites the language of the ATA, the relevant part being, "the laws and 

regulations within that territory relating to admission to 

or departure from its territory . . . shall be complied 

with." This language indicates that the laws of a party 

regarding an aircraft's admission or departure are respected while the aircraft carrier operates within that 

party's territory. Neither this language, nor the language 

in the entirety of the ATA, makes any mention of the 

laws that should be used to govern compensation for 

delayed flights. Instead, the only language included in 

the ATA potentially relevant to the Polinovskys' claim is 

the "importance of protecting consumers." Id. art. 16. 

The ATA offers no additional guidance related to consumer protection. Therefore, this [*14] Court finds that 

the ATA has no bearing on whether EU 261 applies to 

the Polinovskys' breach of contract claim.

4. Baumeister's Breach of Contract Claim

Lufthansa's next argument is that plaintiff 

Baumeister's breach of contract claim fails because EU 

261 only requires operating carriers to pay compensation 

to passengers whose flights have been delayed. Plaintiff 

Baumeister was a passenger on Lufthansa Flight 1371. 

Lufthansa alleges that Flight 1371 was subject to a code 

share agreement between Augsburg Airways and 

Lufthansa, designating Lufthansa as the contracting carrier and Augsburg Airways as the operating carrier. Pursuant to the code share agreement, "[i]f in the case of a 

Code Share flight LH is indicated as the carrier, these 

Conditions of Carriage also apply to such transportation." EU 261 is incorporated into the Conditions of Carriage and allows for compensation to passengers whose 

flights have been delayed more than three hours. However, EU 261 limits liability to operating carriers only. 

EC 261, Article 3(5). As the contracting carrier, 

Lufthansa argues that it is not liable to provide any compensation to Baumeister for his delay.

Plaintiffs, on the other hand, argue that [*15] based 

upon the plain language of Lufthansa's Conditions of 

Carriage, Lufthansa should still be liable to Baumeister 

because Lufthansa was responsible "for the entirety of 

the Code Share journey for all obligations to passengers 

established in these rules." Defs.' Ex. C, Section 2.3. 

Plaintiffs also request an opportunity for more discovery 

on the relationship between Lufthansa and Augsburg 

Airways prior to a dismissal of this claim to determine 

whether the two airlines operate as different entities with 

separate Conditions of Carriage.

The distinction between the operating carrier and 

contracting carrier of Flight 1371 is an issue outside of 

the complaint in this case. Despite Lufthansa's assertion 

that Augsburg Airways was the operating carrier of 

Baumeister's flight, Baumeister's ticket included no language that indicated that Augsberg Airways was the operating carrier of the Flight 1371 or that Baumeister had 

formed a contract with Augsburg Airways. Further, 

while Augsburg Airways is a wholly owned subsidiary 

of Lufthansa, the business relationship between the two 

airlines remains unknown. Therefore, there exists sufficient uncertainty to create a factual dispute as to whether 

Lufthansa [*16] or Augsburg Airways acted as the operating carrier of Flight 1371 and whether this information was available to the Baumeister at the time of his 

flight. While it ultimately may be determined that Augs-
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2012 U.S. Dist. LEXIS 44363, *

burg Airways was the operating carrier of Flight 1371, at 

this stage, plaintiffs have not yet been given the opportunity to engage in discovery on this issue. Therefore, 

applying the facts in the light most favorable to the 

plaintiffs, dismissing Baumeister's claim would be improper at this time.

5. Exhaustion of Remedies

Lufthansa's next argument is that all plaintiffs' claim 

should be dismissed because they have failed to exhaust 

all other available remedies in the European Union 

courts. In response, plaintiffs argue there is nothing in 

EU 261 or Lufthansa's Conditions of Carriage that requires them to exhaust any available administrative 

remedies prior to filing this suit. In their reply brief, 

Lufthansa admits plaintiffs' argument to be true, but, 

nevertheless requests this court to exercise its discretion 

to dismiss plaintiffs' claims for failure to exhaust prescribed administrative remedies. Def.'s Reply Br. at 11, 

citing Gonzalez v. O'Connell, 355 F.3d 1010, 1016 (7th 

Cir. 2004).

Again, [*17] there is nothing in EU 261 that requires exhaustion of administrative remedies. The EU 

does require each member state to establish a responsible 

body to enforce its regulations. Airline passengers, however, are not required to complain to this body prior to 

filing a lawsuit. EU 261 Preamble (22).

Further, Lufthansa suggests that, although it may not 

be required in this case, exhaustion is a basic principal of 

international law. However, the Seventh Circuit case 

cited to support Lufthansa's contention, Enahoro v. 

Abubakar, focuses on situations involving human rights, 

not on routine breach of contract matters. 408 F.3d 877, 

886 (7th Cir. 2005). Because plaintiffs' claim falls outside the areas in which international law typically requires exhaustion of remedies, the court is not convinced 

that this type of discretionary dismissal for failure to 

exhaust available remedies is appropriate here.

6. International Comity

Lastly, Lufthansa argues that plaintiffs' complaint 

should be dismissed because a United States court's adjudication of plaintiffs' breach of contract claims, in 

which EU 261 could apply, contravenes principles of 

international comity. International comity is "the recognition [*18] which one nation allows within its territory 

to the legislative, executive or judicial acts of another 

nation, having due regard both to international duty and 

convenience, and to the rights of its own citizens, or of 

other persons who are under the protection of its laws." 

Hilton v. Guyot, 159 U.S. 113, 163-64, 16 S. Ct 139, 40 

L.Ed. 95 (1895).

Lufthansa argues that deference to European courts 

is appropriate in this case because the EU has already 

established a regulatory and judicial framework to enforce and adjudicate claims under EU 261. Further, 

Lufthansa argues that European courts have access to the 

ECJ, the highest court of the European Union, to answer 

questions of European law that may arise in this matter. 

As the ECJ is not available to non-European Union 

courts, adjudicating plaintiffs' claim before this Court 

would deny parties access to the ECJ. The lack of access 

to ECJ guidance would be "particularly inappropriate" 

here because the ECJ has accepted an appeal seeking 

clarification about a central point in this matter: whether 

EU 261 permits passengers to recover compensation for 

flight delays. Therefore, Lufthansa argues that allowing 

this case to proceed may force this [*19] Court to decide European law without the opportunity to seek potentially necessary guidance from the ECJ.

First, while this Court does recognize that EU courts 

have mechanisms in place to adjudicate claims similar to 

the plaintiffs, a plaintiff may, but is not required to utilize these mechanisms. Instead plaintiffs have the right to 

"seek legal redress from courts under the procedures of 

national law." EU 261 Preamble (22). Therefore, plaintiffs have a right to proceed in this Court, despite the 

existence of an alternative enforcement mechanism under the EU. There is nothing in EU 261 that suggests 

otherwise.

Second, although this Court recognizes the unavailability of the ECJ to resolve questions regarding European Union law, the Seventh Circuit has previously 

failed to decline jurisdiction based on principles of comity where there is no competing or parallel action and the 

claim is premised on breach of contract law. See, e.g. 

AAR Int'l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510 

(7th Cir. 1996). Here, plaintiff is seeking enforcement of 

a breach of contract claim. The matter does not involve 

an area of law so complicated that this court will be unable to apply EU 261. Furthermore, [*20] the court recognizes that the ECJ has a referral seeking to reevaluate 

Sturgeon. This Court will be able to apply the ECJ's 

forthcoming ruling while postponing action or to stay the 

merits of this case pending a decision by the ECJ on the 

question at issue. Therefore, the court does not feel that 

this matter requires dismissal for the sake of international 

comity.

CONCLUSION

For the foregoing reasons, Defendant Lufthansa's 

motion to dismiss [29] is denied.

IT IS SO ORDERED.

/s/ Sharon Johnson Coleman
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2012 U.S. Dist. LEXIS 44363, *

Honorable Sharon Johnson Coleman Dated: March 30, 2012